The proposed Constitution of Aotearoa New Zealand would marginally improve the level of protection from discrimination the trans* community receives under New Zealand law. Including gender as a prohibited ground of discrimination in article 96(1) of the proposed constitution is insufficient to protect trans* New Zealanders from the diverse discrimination they face.[1] Adding gender identity and expression as prohibited grounds of discrimination would guarantee equality before the law and provide symbolic recognition to the status of trans* people within our society. It is time to provide express constitutional protection to all trans* New Zealanders.

Trans* is an umbrella term encompassing people whose gender identity differs to the gender role expected by society due to the sex they were assigned at birth.[2] Sex refers to a person’s physical anatomy and examines conformity with male or female sex characteristics.[3] Comparatively, gender is a socially and politically constructed concept referring to the behavioural, psychological, social and cultural expectations of society and is commonly referred to in binary terms such as masculinity and femininity. Incompatibility with these expectations is referred to as being non-binary.[4] A person’s gender identity is their psychological sex; their internal sense of being male, female, both or neither.[5] Gender expression relates to external expressions of gender which may or may not be congruent with the person’s gender identity.[6] Individuals whose sex and gender identity are congruent are classed as cisgender.[7] Comparatively, the sex and gender identity of trans* individuals are incongruent.[8]

The Human Rights Act 1993 prohibits sex discrimination; gender identity and expression discrimination are not expressly recognised.[9] In 2006 the Human Rights (Gender Identity) Amendment Bill 2004 was withdrawn following a Solicitor-General’s Opinion which concluded that amending the Human Rights Act to include gender identity discrimination was unnecessary because trans* people were already protected under the ground of sex discrimination.[10] This issue has not been litigated in New Zealand.[11]

Under the Human Rights Act sex discrimination would need to be interpreted purposively to include gender identity and expression discrimination.[12] There is more than a negligible risk that such an interpretation would only extend protection to trans* people who have or intend on undergoing sex reassignment surgery or identify within the gender binary. An unsatisfactory anomaly would arise whereby trans* people who identify as non-binary or decide not to medically transition would be left without protection from discrimination.[13] Adding gender as a prohibited ground of discrimination in article 96(1) of the proposed Constitution for Aotearoa New Zealand would not offer a satisfactory resolution either. A wide interpretation of gender would avoid distinctions between trans* people based on whether or not they have undergone sex reassignment surgery. However, gender is an inherently binary concept, even if gender was interpreted purposively to include gender identity and expression, it is reasonably likely that non-binary trans* people would still be left without protection from discrimination. Thus, the proposed Constitution of Aotearoa New Zealand, like the Human Rights Act, would fail to provide certainty that trans* New Zealanders are protected from discrimination.[14]

The legislative models adopted in comparable jurisdictions such as Australia, Canada and the United Kingdom offer valuable insights into how and why the Constitution of Aotearoa New Zealand should be amended to provide full constitutional protection to trans* New Zealanders.

In Australia, gender identity discrimination has been recognised as unlawful under federal law since 2013.[15] Gender identity is defined broadly and encompasses discrimination based on a person’s gender-related characteristics such as the identity, appearance or mannerisms regardless of whether medical intervention has occurred.[16] Despite using different terminology, all Australian states except the Northern Territory prohibit gender identity discrimination.[17] Discrimination based on sex and sexuality are prohibited in the Northern Territory.[18] Unusually, sexuality is defined as including the sexual characteristics or imputed sexual characteristics of transsexuality.[19] The approach under federal law in Australia provides a useful example of how gender identity discrimination could be protected in New Zealand.[20]

Gender identity discrimination is not currently recognised under Canada’s federal law.[21] If enacted, Bill C-16 will provide federal recognition to discrimination based on gender identity and expression.[22] Most Canadian provinces and territories recognise gender identity and/or gender expression as prohibited grounds of discrimination in their human rights law, except New Brunswick, Nunavut and Yukon.[23] The legislative assemblies of New Brunswick, Nunavut and Yukon are considering Bills that, if enacted, will include gender identity and gender expression as prohibited grounds of discrimination.[24] Additionally, Canadian courts have consistently given sex discrimination a liberal interpretation to include trans* people regardless of whether they have had sex reassignment surgery.[25] Provincial and territorial legislation in Canada provide progressive legislative examples that could be implemented in New Zealand under the Constitution of Aotearoa New Zealand.

The Equality Act 2010 (UK) includes sex and gender reassignment as protected characteristics; gender identity is not recognised as a protected characteristic.[26] Trans* people who are or intend on medically transitioning from male-to-female or female-to-male are clearly protected from discrimination under the protected characteristic of gender reassignment; however, there is no certainty that non-binary trans* persons would be protected.[27] This Act clearly demonstrates how binary notions of sex and gender fail to provide full protection to the trans* community and leads to arbitrary distinctions between binary and non-binary identified trans* people.[28] This state of affairs can be easily avoided in New Zealand by including gender identity and gender expression under the prohibited grounds of discrimination in art 96(1) of the Constitution of Aotearoa New Zealand.

We must protect trans* New Zealanders’ internal sense of self and external expressions of their true identity to enable them to participate fully in society. The inclusion of gender in article 96(1) of the Constitution of Aotearoa New Zealand is insufficient to provide trans* people with the level of protection required to address the diverse range of discrimination they face and would not provide clarity or certainty within our human rights law. It is strongly recommended that the Constitution of Aotearoa New Zealand guarantee trans* New Zealanders constitutional protection from discrimination based on their gender identity and expression. Prohibiting discrimination based on gender identity and expression under article 96(1) of the Constitution of Aotearoa New Zealand would provide symbolic recognition to the status of trans* people within New Zealand society, guarantee equally before the law and further enhance New Zealand’s compliance with international human rights law.[29]

[26] Equality Act 2010 (UK), s 4; Under s 7 a person has the protected characteristic of gender reassignment if they are proposing to undergo or have undergone, in whole or in part, through the process of sex reassignment by changing their sex attributes.

[27] Women and Equalities Committee, House of Commons Transgender Equality: First Report of Session 2015-2016 (08 December 2015) at 23-25.

[28] The House of Commons Women and Equalities Committee has recently recommended that the references to gender reassignment be amended to gender identity, at 3 and 26-27.

[29] See Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity ICJ (2006), principle 2; See generally, United Nations General Assembly Universal Declaration of Human Rights GA Res 217 A (III) (1948), arts 1-2; United Nations General Assembly Statement on Human Rights, Sexual Orientation and Gender Identity A/63/635 (2008).